0120071223
05-07-2009
Peierre L. Freeman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Peierre L. Freeman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071223
Hearing No. 451-2006-00221X
Agency No. 1G-753-0039-06
DECISION
On January 4, 2007, complainant filed an appeal from the agency's
December 20, 2006 notice of final action concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a Motor Vehicle Operator at the agency's Dallas Processing
and Distribution Center located in Dallas, Texas. In the beginning
of March 2006, complainant requested light duty for up to six weeks.
While the record contains three different versions of the "Light
Duty Request/Medical Accommodation Request," submitted in support
of the request for light duty, all three versions have the following
restrictions: sitting (5 hours intermittently, 8 hours continuously);
standing (1 hour intermittently, 2 hours continuously); walking (1 hour
intermittently, 2 hours continuously); lifting (1 hour intermittent
lifting of a maximum of 70 pounds); bending (1 hour intermittently, 2
hours continuously); squatting (1 hour intermittently, none continuously);
no kneeling; twisting (1 hour intermittently, 4 hours continuously);
and no climbing ladders. The three versions differed with regard to
complainant's ability to operate a car, truck, forklift or tow vehicle.
Two of the forms reflected complainant could not perform this workplace
activity, and the third form allowed complainant to perform this activity.
All three versions of the form stated that complainant's restrictions
were temporary, lasting for six weeks.
On March 29, 2006, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of disability (ankle problem)
when: on March 8, 2006, complainant was placed off the clock and denied
light duty.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. While complainant's case was pending before the AJ,
complainant filed a request to amend his complaint to include the agency's
denial of his August 22, 2006 request for a reasonable accommodation
of not being asked to drive 11 ton trucks until the steps are modified.
The agency filed an opposition to the request to amend and a motion for
summary judgment. Over the complainant's objections, the AJ assigned
to the case granted the agency's motion for a decision without a hearing
and issued a decision without a hearing on December 13, 2006.
The AJ's decision found complainant's restrictions did not rise to the
level of a substantial limitation on a major life activity. The AJ
stated that even if the ability to climb ladders and kneel were major
life activities, complainant's six-week restriction did not rise to the
level of a substantial limitation. The AJ noted even if complainant
was claiming he was substantially limited in the major life activity
of working due to his temporary inability to operate a motor vehicle,
the restriction was not of sufficient duration to qualify for coverage.
The AJ also found no evidence complainant had a record of an impairment
which substantially limited a major life activity or was regarded by
the agency as having such an impairment. Thus, the AJ found complainant
was not covered by the Rehabilitation Act.
The agency subsequently issued a notice of final action on December 20,
2006. In its final action the agency fully implementing the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
On appeal, complainant claims the AJ erred in failing to rule on his
request to amend his complaint.
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact.
29 C.F.R. � 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
With regard to complainant's argument that the AJ failed to rule
on his request to amend, we find that by not granting complainant's
motion the AJ effectively denied the request to amend his complaint.
According to 29 C.F.R. � 1614.106(d), "[a]fter requesting a hearing,
a complainant may file a motion with the Administrative Judge to amend a
complainant to include issues or claims like or related to those raised
in the complaint." We find no indication the AJ abused her discretion
in denying the motion to amend the complaint.
Upon review, we find the AJ's grant of summary judgment in this case
was appropriate. Assuming complainant is a qualified individual with
a disability, we find complainant failed to show that he was qualified
to perform the essential functions of his position as a Motor Vehicle
Operator during the relevant time. Moreover, we find complainant failed
to show that there were any vacant funded positions available within
his medical restrictions during the relevant time. Accordingly, the
agency's final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 7, 2009
__________________
Date
2
0120071223
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120071223